Citation Nr: 0307103
Decision Date: 04/14/03 Archive Date: 04/24/03
DOCKET NO. 02-02 549 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for an
acquired psychiatric disorder.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to an effective date earlier
than December 3, 1991, for a grant of an evaluation of 20
percent for residuals of a fracture of the proximal surface
of the base of the phalanx of the third finger of the left
hand.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from December 1948 to June
1952.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision in June 1999 by the Nashville,
Tennessee, Regional Office (RO) of the Department of Veterans
Affairs (VA).
The Board notes that a decision by the Board in April 1976
denied the veteran's claim of entitlement to service
connection for an acquired psychiatric disorder, to include
anxiety with depression. Subsequent decisions by the Board
in May 1978, June 1980, August 1983, June 1988, and February
1993 found that new and material evidence sufficient to
reopen the claim had not been submitted. The Board's
February 1993 decision was affirmed by the United States
Court of Appeals for Veterans Claims (Court) in December
1993, and in April 1994 the United States Court of Appeals
for the Federal Circuit dismissed the veteran's appeal from
the Court's decision for lack of jurisdiction. Thereafter,
in October 1998, the veteran submitted additional evidence in
an attempt to reopen his claim. The RO found that new and
material evidence to reopen the claim had not been submitted,
and the current appeal on that issue ensued.
In a decision of September 1997, the Board denied the
veteran's claim of entitlement to an effective date earlier
than December 3, 1991, for a grant of an evaluation of 20
percent for a disability of the left third finger. The
veteran did not appeal the Board's decision to the Court, and
the decision became final. The veteran has submitted
additional evidence in an attempt to reopen his claim for an
earlier effective date. The RO found that the additional
evidence is not new and material, and the current appeal on
the earlier effective date issue ensued.
FINDINGS OF FACT
1. A Board decision in April 1976 denied entitlement to
service connection for an acquired psychiatric disorder.
2. Board decisions in May 1978, June 1980, August 1983, June
1988, and February 1993 found that new and material evidence
had not been submitted to reopen the claim of entitlement to
service connection for an acquired psychiatric disorder.
3. Additional evidence presented or secured since February
1993 is not so significant that it must be considered in
order to fairly decide the merits of the claim for service
connection for an acquired psychiatric disorder.
4. A Board decision in September 1997 denied the veteran's
claim for an earlier effective date for a grant of an
evaluation of 20 percent for a disability of the left third
finger.
5. Additional evidence presented or secured since September
1997 is not so significant that it must be considered in
order to fairly decide the merits of the claim for an earlier
effective date for a grant of an evaluation of 20 percent for
a disability of the left third finger.
CONCLUSIONS OF LAW
1. A decision by the Board in February 1993, finding that
new and material evidence had not been submitted to reopen a
claim of entitlement to service connection for an acquired
psychiatric disorder, is final. 38 U.S.C.A. § 7104(b) (West
2002).
2. Additional evidence received since February 1993 is not
new and material, and a claim of entitlement to service
connection for an acquired psychiatric disorder is not
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156(a) (2002).
3. A decision by the Board in September 1997, denying
entitlement to an effective date earlier than December 3,
1991, for a grant of an evaluation of 20 percent for
residuals of a fracture of the proximal surface of the base
of the phalanx of the third finger of the left hand, is
final. 38 U.S.C.A. § 7104(b) (West 2002).
4. Additional evidence received since September 1997 is not
new and material, and a claim of entitlement to an effective
date earlier than December 3, 1991, for a grant of an
evaluation of 20 percent for residuals of a fracture of the
proximal surface of the base of the phalanx of the third
finger of the left hand is not reopened. 38 U.S.C.A. § 5108
(West 2002); 38 C.F.R. § 3.156(a) (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that, on November 9, 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) became law. The VCAA
applies to all pending claims for VA benefits and provides
that VA shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claimant's
claim for a benefit under a law administered by VA. The VCAA
also provides that VA shall notify the claimant of any
information, and any medical or lay evidence not previously
provided to VA, which is necessary to substantiate the claim
and whether VA or the claimant is expected to obtain any such
evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). In the instant case, the Board finds that VA has
complied with the requirements of the statute. The veteran
has not identified any evidence which may be pertinent to his
claim which the RO has not obtained and considered. The
Board notes that there is a prior final decision by the Board
denying the veteran's claim for service connection for an
acquired psychiatric disorder and there are 5 prior final
decisions by the Board finding that new and material evidence
has not been submitted by the veteran to reopen his claim.
Over the years, the RO and the Board have repeatedly notified
the veteran of the requirement in law that he submit new and
material evidence in order to reopen his claim. Since he
once again attempted in October 1998 to reopen his claim, the
RO, in a Statement of the Case of January 2002, notified the
veteran that he needed to submit or identify medical evidence
showing that he has an acquired psychiatric disorder which
was incurred in, aggravated by, or caused by his military
service. The RO also notified the veteran of the
requirements in law for entitlement to earlier effective date
for a grant of an increased evaluation for a disability of
the left third finger. The Board concludes that all
reasonable efforts were made by VA to obtain evidence
necessary to substantiate the veteran's claim and that the
notice provisions of the VCAA have been complied with. The
Board finds that there will be no prejudice to the veteran if
the Board decides his appeal at this time and the Board will,
therefore, proceed to consider the veteran's appeal. See
Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5103,
5103A (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2002); see also Bernard v. Brown, 4 Vet. App. 384,
394 (1993).
The law provides that, except as provided in § 5108, when a
claim is disallowed by an agency of original jurisdiction,
the claim may not thereafter be reopened and allowed and a
claim based upon the same factual basis may not be
considered. 38 U.S.C.A. § 7105 (West 2002). If new and
material evidence is presented or secured with respect to a
claim which has been disallowed, the claim shall be reopened
and the former disposition of the claim shall be reviewed.
38 U.S.C.A. § 5108 (West 2002).
"New and material evidence" means evidence not previously
submitted to VA decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant of prior evidence
and which, by itself, or in connection with evidence
previously assembled, is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (2001).
When a veteran seeks to reopen a final decision based on new
and material evidence, a sequential analysis must be applied.
See Elkins v. West, 12 Vet. App. 209, ***********); Hodge v.
West, 155 F.3d 1356 (Fed. Cir. 1998). The first step is to
determine whether new and material evidence has been received
under 38 C.F.R. § 3.156(a). Then, the merits of the claim may
be evaluated, after ensuring that the duty to assist has been
met.
I. Acquired Psychiatric Disorder
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if preexisting such service, was
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. § 3.303(a) (2002). Service connection may
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2002). Psychosis may be presumed to have
been incurred in service when the disease is manifested to a
compensable degree within one year of separation from
service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2002).
The evidence of record at the time of the Board's April 1976
decision included the following: VA Form 21-526, Veteran's
Application for Compensation or Pension, filed by the veteran
in September 1974, claiming service connection for
"nervousness"; a report by the National Personnel Records
Center that the veteran's service medical records were
presumed to have been destroyed in a fire at that facility in
July 1973; morning sick reports of the veteran's unit;
written statements by the veteran; testimony by the veteran
at a hearing in September 1975 before a rating board; a
statement by a fellow service member; lay statements by
relatives and friends of the veteran; office notes of a
private physician dated from January 1953 to April 1968; a
statement by a private physician dated in December 1974; and
a report of a VA examination in April 1975. In his
statements and testimony, the veteran said that he had been
treated for a nervous condition while he was on active duty.
The fellow service member stated that the veteran had been
treated for a slight nervous condition in 1950 and 1951. The
persons who made the lay statements said that the veteran was
nervous after he returned from service. The private
physician reported in December 1974 that he had treated the
veteran for "depressive state" since January 1953. The
pertinent diagnosis at the VA examination in April 1975 was
anxiety with depression. In the decision of April 1976, the
Board found that the veteran may possibly have had transient
nervous symptoms during his period of active service but that
a chronic psychiatric disability was not incurred in service.
As noted above, Board decisions in May 1978, June 1980,
August 1983, June 1988, and February 1993 found that the
veteran did not submit new and material evidence to reopen
his claim of entitlement to service connection for an
acquired psychiatric disorder. The additional evidence
presented or secured after the Board's April 1976 decision
and prior to the Board's February 1993 decision included: a
statement by another fellow service member of the veteran;
reports of VA hospitalization for psychiatric treatment and a
VA psychological examination in July 1978; VA mental health
clinic notes dated in July and September 1978; VA outpatient
mental health clinic records dated in 1981 and 1982; the
veteran's service personnel records; further statements by
the veteran; and additional VA treatment records. The fellow
service member stated that the veteran was very nervous when
he arrived at an Air Force base in California in the fall of
1950. The service personnel records were silent for any
psychiatric treatment. The pertinent diagnoses at the VA
psychological evaluation in July 1978 were rule out psychotic
processes versus paranoid personality and rule out organic
involvement. In September 1978, at the VA mental health
clinic, some apparent paranoid ideation was noted. VA
medical records showed hospitalization in late 1991 for a
delusional disorder. The Board decision of February 1993
found that the additional evidence up until the time of that
decision did not demonstrate that a chronic psychiatric
disorder was present while the veteran was on active duty,
that a psychosis was present to a compensable degree within
one year of his separation from active service, or that any
current chronic psychiatric disorder could be attributed to
service.
The additional evidence added to the record since the Board's
decision of February 1993 consists of statements by the
veteran and VA outpatient treatment records dated from
December 1994 to February 1999. In his statements, the
veteran contended that he has an acquired psychiatric
disorder which was incurred during his active service. His
statements in this regard are cumulative of statements which
he made prior to the Board's decision of February 1993 and
are thus not "new." The VA treatment records, which
include mental health clinic records noting a history of
anxiety and depression, do not contain any medical findings
or a medical opinion relating a current acquired psychiatric
disorder to the veteran's period of active service.
Therefore, while new, the VA treatment records are not
probative as to the basis of the prior final denials of
service connection for an acquired psychiatric disorder.
Such being the case, the additional VA treatment records are
not material. The Board concludes that, since the prior
Board decision in February 1993, the veteran has not
submitted new and material evidence to reopen his claim of
entitlement to service connection for an acquired psychiatric
disorder. See 38 U.S.C.A. §§ 5108, 7104(b) (West 2002);
38 C.F.R. § 3.156(a) (2002).
II. Earlier Effective Date
The applicable statute and regulations provide that, except
as otherwise provided, the effective date of an evaluation
and award of pension, compensation, or dependency and
indemnity compensation based on an original claim, a claim
reopened after final disallowance, or a claim for increase
will be the date of receipt of the claim or the date
entitlement arose, whichever is the later. 38 U.S.C.A.
§ 5110 (West 2002); 38 C.F.R. § 3.400 (2002). The effective
date of an increase in disability compensation shall be the
earliest date as of which it was factually ascertainable that
an increase in disability had occurred if a claim was
received within one year from such date; otherwise, the
effective date shall be the date of receipt of claim.
38 C.F.R. § 3.400(o)(2) (2002).
In the instant case, a rating decision in February 1995
granted an evaluation of 20 percent for residuals of a
fracture of the proximal surface of the base of the first
phalanx of the third finger of the left hand, effective from
December 3, 1991. The veteran filed a notice of disagreement
with the effective date assigned by the RO and, after the
issuance of a statement of the case, perfected his appeal to
the Board on that issue by filing a substantive appeal. In a
decision of September 29, 1997, the Board denied the
veteran's claim for an earlier effective date. The Board
found that the date of claim for an increased evaluation for
the veteran's left third finger was December 3, 1991, and
that it was not factually ascertainable prior to December 3,
1991, that an increase in disability had occurred. The Board
concluded that December 3, 1991, was the proper effective
date for the increased evaluation of 20 percent for the left
third finger disability and denied the veteran's appeal.
Since the Board's September 1997 decision, the veteran has
submitted additional evidence in an attempt to reopen his
claim for an effective date earlier than December 3, 1991,
for the grant of an evaluation of 20 percent for his left
third finger disability. The additional evidence consists of
his statements and of VA outpatient treatment records dated
from December 1994 to February 1999. In his statements, the
veteran contended that he is entitled to an effective date
for the increased evaluation for his left third finger
disability as of the date in 1974 when he filed his original
claim for VA benefits. These statements by the veteran are
cumulative of statements which he made prior to the Board's
decision of September 1997 and are thus not new. The VA
treatment records, which are new, make no reference to any
disability of the veteran's left third finger and thus have
no probative value on the issue of when it was factually
ascertainable that an increase in disability had occurred.
Such being the case, the VA treatment records are not
material on the issue of entitlement to an earlier effective
date for an evaluation of 20 percent for a left third finger
disability. The Board concludes that, since the prior Board
decision in February 1993, the veteran has not submitted new
and material evidence to reopen his claim of entitlement to
an effective date earlier than December 3, 1991, for a grant
of an evaluation of 20 percent for residuals of a fracture of
the proximal surface of the base of the phalanx of the third
finger of the left hand. See 38 U.S.C.A. §§ 5108, 7104(b)
(West 2002); 38 C.F.R. § 3.156(a) (2002).
ORDER
New and material evidence not having been submitted to reopen
a claim of entitlement to service connection for an acquired
psychiatric disorder, the appeal on that issue is denied.
New and material evidence not having been submitted to reopen
a claim of entitlement to an effective date earlier than
December 3, 1991, for a grant of an evaluation of 20 percent
for residuals of a fracture of the proximal surface of the
base of the phalanx of the third finger of the left hand, the
appeal on that issue is denied.
____________________________________________
F. Judge Flowers
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.